Richey v. Aiyeku et al

Filing 9

ORDER DISMISSING CASE without prejudice. Case Closed. Signed by Judge Rosanna Malouf Peterson. (SK, Case Administrator) **3 PAGES, PRINT ALL** (Thomas William Richey, Prisoner ID: 929444)

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FILED IN THE
U.S. DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON

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UNITED STATES DISTRICT COURT

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SEAN F. MCAVOY, CLERK

EASTERN DISTRICT OF WASHINGTON

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Oct 31, 2018

THOMAS WILLIAM SINCLAIR
RICHEY,

NO: 4:18-CV-5095-RMP

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Plaintiff,
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ORDER DISMISSING
CASE

v.
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J AIYEKU, L. YOUNG and K.
WALKER,
Defendants.

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BEFORE THE COURT is Plaintiff’s First Amended Complaint, ECF No. 8.

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Plaintiff, a prisoner at the Washington State Reformatory, is proceeding pro se. He

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paid the $400.00 filing fee to commence this action. ECF No. 4. Defendants have

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not been served.

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On July 31, 2018, the Court found that Plaintiff’s only viable claim,

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interference with his First Amendment right to use derogatory language in a

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grievance, was already being litigated against Defendant Aiyeku, in cause number

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4:16-CV-5047-RMP, and was therefore subject to dismissal without prejudice as
ORDER DISMISSING CASE -- 1

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duplicative under Azia v. Burrows, 976 F.2d 1158 (9th Cir. 1992). ECF No. 7 at 5-

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6. Plaintiff’s retaliation and grievance processing claims failed to state a claim

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upon which relief may be granted. ECF No. 7 at 6.

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Once again, Plaintiff seeks monetary damages claiming that, between May

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2015 and June 2016, Defendants violated his right to petition for redress of

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grievances (i.e., use abusive and derogatory language in grievances) and his right

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to be protected from retaliation under the First Amendment. He states that on fifty

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occasions (25 of which he is already litigating in 4:16-CV-5047-RMP), he sought

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the investigation of alleged abuse and misconduct through the grievance process,

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and on each occasion the three named Defendants instructed him to rewrite the

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grievance to remove language they determined was abusive and derogatory,

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without explaining which specific language was abusive and derogatory. ECF No.

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8 at 5.

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process the grievances “as is.” He alleges that Defendants “retaliated” against him

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by failing to process the grievances, thus allegedly depriving Plaintiff of the right

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to petition for redress of grievances.

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Plaintiff contends that he consequently requested that the Defendants

A Ninth Circuit panel, in an unpublished opinion regarding Plaintiff’s

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litigation in the Western District of Washington on similar grounds, clarified that

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“in context in Brodheim the ‘adverse regulatory action’ language refers to some

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additional punitive action or threat of punitive action over and above merely

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refusing to accept the grievance.” Richey v. Dahne, ___ Fed. Appx. ___, 2018 WL
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1940242, at *6 (9th Cir. Apr. 25, 2018) (quoting Brodheim v. Cry, 584 F. 3d 1262,

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1270-71 (9th Cir. 2009)). Therefore, Plaintiff’s assertion that failing to process

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grievances constitutes a retaliatory adverse action under Rhodes v. Robinson, 408

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F.3d 559, 567-68 (9th Cir. 2005), is misplaced. Liberally construing the First

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Amended Complaint in the light most favorable to Plaintiff, the Court finds that it

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fails to cure the deficiencies of the initial complaint.

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Consequently, for the reasons set forth above and in the Court’s prior Order,

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IT IS ORDERED that the complaint is DISMISSED without prejudice as

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duplicative and for failure to state a claim upon which relief may be granted.

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Because this dismissal is not solely for the reasons enumerated in 28 U.S.C. §

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1915(g), and based on this Court’s reading of Washington v. Los Angeles Cty.

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Sheriff's Dep't, 833 F.3d 1048 (9th Cir. 2016), this dismissal will NOT count as a

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“strike” pursuant to 28 U.S.C. § 1915(g).

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IT IS SO ORDERED. The District Court Clerk is directed to enter this

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Order, enter judgment for Defendants, provide a copy to Plaintiff at his last known

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address, and close the file.

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DATED October 31, 2018.

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s/ Rosanna Malouf Peterson
ROSANNA MALOUF PETERSON
United States District Judge

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ORDER DISMISSING CASE -- 3